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Hoorcollege aantekeningen Children's Rights and Juvenile Justice 2015/2016
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Hoorcollege aantekeningen week 1 tot en met 7 (week 8 ontbreekt) Children's Rights and Juvenile Justice
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Hoorcolleges Children’s Rights and Juvenile Justice:Ainsley Hoogeboom
Week 1:
Universal Document on Human Rights, 1948. Non-binding document. It layed the
foundation for a treaty. All the civil and social-cultural rights should be covered. In
1966 we had two Covenants, one of civil rights and one on social-cultural rights.
Convention on racial discrimination, Apartheid is one of the articles in this
convention. People thought that the two conventions didn’t protect the rights of
different groups of people enough This led to different treaties to address
different circles of societies.
Convention on elimination of discrimination of women.
Convention on the rights of the child followed by a treaty of migrant workers and
their families. Most recently the treaty on persons with disabilities.
Convention on the rights of the Child: 1989. Declarations are non-binding
documents, 1959 the first step was made to the Convention on the Rights of the
Child. Drafting takes places in a committee. Today it is the Human Rights Council,
74 in Council. Important element was the involvement of civil society through
non-governmental organisation. They were not a formal member, but could made
proposals and had considerable impact. Took 10 years, since 1980 in the last
week of January. 1979 was the International year of the Child. Ten years later it
was adopted unanimously. Art. 38 is the most difficult Children in armed
conflict. Applicable for every person below 18. Minimum age for recruitment is
15. Optional protocol to the article by the movement that was against the article,
recruitment is not allowed (so also under 15). Another protocol is the one on child
prostitution and child pornography. Not every country has ratified this protocols
yet. Third optional protocol, communication procedures, you can file a complaint
when your rights are being deprived. You first have to use national law. NGO’s
can file a complaint on behalf of identified children. The NGO’s want a right to file
a complaint of a group of children, but this was not accepted.
CRC is the most ratified human rights treaty, 196 countries. Last one was
Somalia, only one that hasn’t ratified it is the USA. There is another country,
Taiwan also hasn’t ratified the Convention. They are not recognised as a State
and as a member of the UN. When you want to be a member, you have to go
through the Security Council, but was opposed by a veto of China. They don’t
want Taiwan to be an independent state.
Every human rights treaty has a monitoring body. Art. 43 CRC. Committee on the
Children Rights. Implementation of CRC is first the task of the government of the
state. Checking should take place on national level first. In many countries you
have national human rights institutions, independent bodies. They have to be
established independent.
The Committee is an elected body by 18 members. Because there was an
amendment of art. 43 CRC that talks about the number of members. Amendment
by Costa Rica. A treaty on human rights is never changed, this was one of the
exceptions. General comment, issued by the Committee, 18 have been issued so
far. This can update the CRC. General comment no. 10 on juvenile justice. Most
contested general comment is the minimal age of criminal responsibility, age at
which you as a child can be held responsible before criminal courts for offences
you have committed. Maximum is 18, minimum age is 12 in some countries, but
,also 8, 9 or 10. India and Brazil are trying to change the law so that children of 16
and 17 can be treated as adults. NGO’s in these countries are trying to stop this.
For the election, people can be put forward by state parties. But he has to be a
national of the country that puts him forward. If you are elected, you are not
representing your country but you are an independent person. When your
country has submitted a report, you are not participating in the discussing and
the final document on the examination of your country. This is because you want
to avoid the appearance of the influence of an elected person of his country. You
can be re-elected as many times as you want. You have to be in Geneva for three
months a year. You get one dollar paid per year, which you don’t receive, it is a
symbolic thing. Travel costs are taking care of, also the hotel etc.
Art. 1 CRC is only telling you to whom this convention is applicable. It is
applicable to all persons under 18, with an exception when a state allows the
minor to be seen an adult before 18. General principles: art. 2, art. 3, art. 6 and
art. 12 CRC. The report you sent to the Committee starts with general
implements, art. 4 CRC. Civil political rights, art. 14 – 16 CRC.
Sustainable development goal Much more elaborated. Deals with many issues,
sets many goals to achieve in 2030. One is to end all violence against children.
Poverty is a big issue too.
Week 2:
MACR: Minimum Age of Criminal Responsibility. Young children cannot be held
criminal responsible. There is a heated debate: At what age can we hold young
children criminal responsible? And what are serious crimes? Long history of the
debate of the MACR. Roman law: Doli incapax, young children are not capable to
very bad things and commit offences. There are not capable of committing
crimes on purpose.
Several treaties which are important for the MACR:
Beijing Rules (1985). Focus on young people in criminal court. Rule 4: Age
of criminal responsibility. ‘The beginning of that age shall not be fixed at
too low an age level, bearing in mind the facts of emotional, mental and
intellectual maturity’. So there is no specific age mentioned, there was too
much debate for this.
CRC (1989): States Parties shall seek to promote: ‘the establishment of a
minimum age below which children shall be presumed not to have the
capacity to infringe the penal law’.
CRC General Comment 10 (2007): 12 years should be minimum age limit.
How is the minimum age divided across the world?
Age: Number of States/Countries:
6 1 (North Carolina)
7 27 (India, South Africa, etc.)
8 9 (Arizona, etc.)
9 7 (Ethiopia, etc.)
10 35 (Australia, England, France, Tanzania, etc.)
12 23 (Brazil, Canada, Netherlands, Uganda, etc.)
13 20 (Algeria, Greece, etc.)
14 31 (Austria, Croatia, Germany, Japan, Rwanda, etc.)
15 8 (Czech Republic, Denmark, etc.)
16 1 (Belgium, Guinnee Bissau)
,Scientific evidence:
Young children lack understanding of the wrongness of their actions in the
perspective of the law.
Adolescents lack mature decision making capacities. Young children can’t
think in abstract logic:
o Immature cognitive abilities
o Immature psychosocial abilities. It is just this age group between 12
and 18 which can be influenced by peers. Lack of empathy The
young children cannot think of what the other people want them to
do.
o Immature brain.
Adolescents lack capacities in court.
Practical implications of the MACR:
Does the MACR correspond with other legal regulations? Almost
everywhere there is a lower level of criminal responsibilities and a higher
age of other civil rights: like marrying or driving a car.
Skirting the rules
Transfer & Mandatory Sentencing
Age of Prosecution. Netherlands 12 years old. ¾ of West Europe 14
years old.
From a developmental perspective the age of 14 seems more rational then 12. 12
is too young to hold children responsible for their actions. There also is a
pedagogical task in reacting to youth delinquency (sanctions + procedures,
assistance of specially trained lawyers that know a lot about young people etc.).
The upper age limit of juvenile justice:
The Netherlands has a flexible system:
18 – 23 years olds: transfer to youth court. Sanctions are different here.
Art. 77c Sr. It is an experiment. Depends on if the adolescent is mentally
disabled.
16 – 18 year olds: transfer to criminal court. Art. 77b Sr. Depends on the
seriousness, mental disorder and if the child is a co-offender with adults.
There are two models applicable when 16 to 18 year olds are being transferred to
criminal court:
Flexible model (Netherlands & England). Here are modest maximum
sanctions and a transfer of serious cases to criminal court is applied.
Strict model (Germany & Austria). There are high maximum sanctions and
no transfer of serious cases to criminal court.
Arguments pro + contra transfer to criminal court:
Contra:
o CRC art. 40(2).
o Developmental psychology
o No legal conformity with civil rights (like marriage, driving a car etc.)
o From a criminological perspective: counterproductive.
Pro:
o Serious crime/social indignation
o Serious disorder/social risk/safety
,Week 3:
Safety-houses in the Netherlands:
First concepts came up about 8 years ago. There are around 40 Safety-Houses
across the country. They are financed by the Ministry of Safety and Justice and
receive a financial contribution by the participating municipalities. Main objective
is to increase the public safety by combining/matching criminal justice
(health)care and municipal services in complex cases.
A safety house is a concept in which cooperation and coordination on individual
complex cases is organised between various parties involved in social safety. The
main working form is the case-meeting in which individual cases are discusses
led by an independent Chairman.
Objectives are:
Decrease the number of criminal offences and misdemenours.
Work more efficiently: combining (health)care, criminal justice and
municipal services.
Work more effectively.
Chain Partners
- Police
- Public Prosecution Office
- Municipalities within the region of Utrecht (26)/municipal services
- Probation and after care services
- Child care and protection boards
- Prison service
- Institutes for psychiatric consults
- Various institutions for addiction and psychiatric treatment
- Various institutions for welfare and social services
Governing Board/ Steering group
- Compiled of directors of the key chain partners
How we operate target groups (until 2015):
Focus on complex target-groups;
- Persistent Offenders (18+)
- Young (multiple) offenders (12 – 18)
- Domestic Violence
- Youngsters who are (negative) leaders in criminal youth groups.
- Multi problem families
- Actual complex safety-problems.
How we operate target groups (from 2015):
- Top X (X = about 250-300 complex cases in the region of Utrecht)
- Each municipality can provide his greatest problem-cases.
- Focus on high impact crimes.
- Domestic violence is a separated target group.
Exchange information:
Input:
Information is collected on different aspects as:
• Criminal records / recent criminal behaviour
• School/ work
, • Leisure time
• Housing
• Family / finances
• Care/psychiatric situations
• Debts
Outcome:
A personal programme/ intervention on the specific case
- with preventive and/or repressive components
- including ‘enforce & urge’ elements (‘dwang & drang’). Such as school
attendance laws / family supervision / probation supervision
- an advise for judicial intervention in case of a new offense.
Week 4:
Child-friendly justice. Covers also child protection procedures, children involved in
divorces, but also administrative procedures (and ofcourse juvenile justice).
Justice procedures must be adapted to children. Adapted to their age and suitable
for them to understand. Gained much popularity in recent years:
Fair trial
Effective participation
Multidisciplinary approach.
The Council of Europe’s Guidelines on Child-Friendly Justice:
“Child-friendly justice” refers to justice systems which guarantee the respect and
the effective implementation of all children's rights at the highest attainable
level, bearing in mind the principles listed below and giving due consideration to
the child’s level of maturity and understanding and the circumstances of the
case. It is, in particular, justice that is accessible, age appropriate, speedy,
diligent, adapted to and focused on the needs and rights of the child,
respecting the rights of the child including the rights to due process, to
participate in and to understand the proceedings, to respect for private and
family life and to integrity and dignity”.
Multidisciplinary cooperation:
Children’s involvement in criminal, civil and administrative judicial proceedings in
the 28 Member States of the EU (European Commission, 2015):
22 out of 28 Member States encourage a multidisciplinary approach to
juvenile justice through legislative of policy measures.
Most commonly concerning child suspects/offenders and child victims of
domestic violence and/or sexual abuse.
In 13 Member States formal procedures exist to facilitate cooperation
between professionals working with children involved in criminal judicial
proceedings.
In 10 Member States the adoption of a multidisciplinary approach by
professionals takes places on an ad hoc basis They think it is important,
but only picked up when a case calls for this.
5 Member States have set up institutions aimed at ensuring that a
multidisciplinary approach is implemented consistently across cases and in
a sustained fashion.
The Dutch safety house is a good example of the multidisciplinary cooperation.
Different actors have meetings in which they discuss different matters.
Relationship child protection and juvenile justice:
CRC:
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